The following is the established format for referencing this article:Foster, A. C., S. K. Carter, T. S. Haby, L. D. Espy, and M. K. Burton. 2023. Using public litigation records to identify priority science needs for managing public lands. Ecology and Society 28(1):11.
ABSTRACTRelevant science is essential for effective natural resource decision making, including on public lands managed by the United States Department of the Interior (DOI) Bureau of Land Management (BLM), that cover 1/10th of the United States. Most of the BLM’s management decisions require analyses under the National Environmental Policy Act, and the use of science in these decisions is often challenged. Using coproduction, we assembled an interagency team of scientists and resource managers to develop a method for using public litigation to identify priority science needs for the BLM. We searched publicly available case documents finalized from 2015–2019 in Wyoming, Colorado, Utah, and New Mexico within federal courts and the DOI Office of Hearings and Appeals, and identified 108 case documents that involved challenges to the BLM’s use of science. We retained 48 case documents that contained at least one challenge about the BLM’s use of science for a specific resource. We categorized all challenges in each case document according to the proposed action, affected resource, type of science challenged (data about resources, science relevant to potential impacts, methods for analyzing potential impacts, and mitigation actions), and specific nature of the challenge (e.g., challenging direct effects analysis). We identified priority science needs based on the frequency of challenges, the number of states where similar challenges occurred, whether the BLM lost the challenge, and whether the case was remanded. Top needs related to oil and gas development actions and included science about effects on air quality and climate, water, and socioeconomics; data for air quality and climate; and methods for analyzing potential impacts to cultural resources and air quality and climate. The BLM can use this information to prioritize actions (e.g., funding new research or science syntheses) to strengthen its science foundation for decision-making.
Public lands provide ecosystem services such as wildlife habitat, recreational and therapeutic opportunities, renewable and traditional sources of energy, grazing lands for livestock, cultural and historical sites, and a host of other resources, values, and services (Brown et al. 2014, Reese et al. 2019, Havlick et al. 2021, Swette and Lambin 2021). Federally managed public lands also provide substantial conservation value (Clancy et al. 2020), that is relevant to meeting conservation goals set recently by governments across the world (European Commission 2020, Executive Order 2021; https://www.hacfornatureandpeople.org/hac-launch-at-one-planet-summit-advisory).
A strong science foundation can support and ease some aspects of the complex decisions that are needed to manage federal public lands (Mills et al. 2002, Szaro and Peterson 2004, Wilhere and Quinn 2018). Consideration of science in public lands decision making is often required by law (e.g., 42 U.S.C. § 4321 and 16 U.S.C. § 1533(b)(1)(A)); for example, the National Environmental Policy Act (NEPA; 42 U.S.C. § 4321) in the U.S. requires the consideration of the natural and social sciences in all major federal decisions that may impact the human environment. Federal agencies recognize the importance of science in decision making, and have consistently been directed to use the best available science and data in their decisions (Tzoumis 2007, U.S. Department of the Interior 2014, Natural Resources Canada 2018). Mills et al. (2002) found that federal agency staff believe that science is essential to garnering public support in management decisions, and that defensible decisions grounded in science can also reduce vulnerabilities to litigation (Mills and Clark 2001, Szaro and Peterson 2004).
Litigation that challenges public lands decisions is common, and a repeatedly expressed concern of land management agencies (Mortimer and Malmsheimer 2011, Wollstein et al. 2021). Challenges to management decisions on federal public lands have increased over time (Ruple and Race 2020). Some suggest that frequent litigants to federal decisions use the legal process as a means, in and of itself, to affect agency actions: lawsuits bring publicity to controversial actions, and continued litigation can delay projects for substantial amounts of time (Malmsheimer et al. 2004, Keele et al. 2006, Prestemon et al. 2006, Mortimer et al. 2011). Litigation can also have long-term effects on management by damaging stakeholder relationships and setting precedent that counters established management approaches (Jones and Taylor 1995, Broussard and Whitaker 2009). Legal challenges can significantly delay decision making and involve staff time for multiple years: the mean time from case filing to judicial decision in challenges to the U.S. Forest Service, a primary land manager in the United States, is almost two years (Adelman and Glicksman 2018, Keele and Malmsheimer 2018).
The frequency of litigation, its importance for federal agencies, and the level of detail in litigation documents, make litigation a potentially fertile data source for helping land management agencies to better understand their science needs. Understanding the aspects of the agency’s use of science are challenged in litigation, and the outcome of these challenges, can help agencies identify what topics should be prioritized for new or additional scientific studies, developing syntheses of existing science, or other actions to support science-informed decision making in the agency. To our knowledge, litigation has not yet been used to identify potential science needs to support agency decision making. We developed these methods to capitalize on litigation documents as data source and used the largest manager of public lands in the U.S., the Bureau of Land Management (BLM), as a case study.
In the United States, approximately 28% of all land is federal public land. The BLM, within the U.S. Department of the Interior, manages the majority (38%) of these public lands: 98 million hectares of surface land and approximately 283 million hectares of subsurface minerals, primarily located across the contiguous western states and Alaska (Hardy Vincent et al. 2020). The BLM manages these lands for multiple uses and values, including recreation, livestock grazing, mining, scenic and historic values, wildlife habitat, and food, while also managing for sustained yield of renewable resources (Federal Land Policy and Management Act of 1976 [43 U.S.C. §§ 1701–1787]).
Most of the BLM’s management decisions are subject to NEPA (42 U.S.C. § 4321), which requires federal agencies to consider the reasonably foreseeable and potentially significant environmental impacts, and potential alternatives to proposed actions, and to consider the best available science in that process. Proposed actions in the BLM commonly include activities such as livestock grazing permits, oil and gas development, and trail construction, which are typically analyzed using a category of NEPA analysis called an Environmental Assessment. The BLM produced an average of 1435 Environmental Assessments annually between 2015 and 2019 (Bureau of Land Management 2020). BLM also conducts a relatively high number of Environmental Impact Statements, the most complex type of NEPA document, compared to other federal agencies (Tzoumis 2007, Ruple and Tanana 2020). Both Environmental Assessments and Environmental Impact Statements are comprehensive analyses. Accordingly, many of the BLM’s staff spend a substantial amount of time conducting NEPA analyses, with some estimates by BLM authors being as high as fifty percent of a BLM resource specialist’s time. Challenges to these analyses, and the associated decisions, are thus a substantial issue for the agency.
There is both room for, and interest in, strengthening science-informed decision making on federally managed public lands (Smith 2006, Cerveny and Ryan 2008, Broussard and Whitaker 2009, Ma et al. 2018). The BLM in particular is committed to using science-informed decision making at every level and in every program (Kitchell et al. 2015). Specifically, the agency is working to increase the use of science in agency decisions in multiple ways, including funding development of annotated bibliographies and science syntheses on topics of management concern (Hanser et al. 2018, Carter et al. 2020). However, the types and topics of science that federal decision makers need may not always be available (Fazey et al. 2005), or even known. Use of science in federal agency decision making has been studied for some agencies (e.g., U.S. Forest Service; Szaro and Peterson 2004, Cerveny and Ryan 2008), but prioritizing needs for science and data to strengthen the foundation of agency decisions, particularly for the BLM, has not been fully explored.
Our goal was to use public litigation records to help identify priority science needs to support the BLM’s decision making on federal public lands. Our objectives were to: (1) describe characteristics of case documents challenging the BLM’s use of science, (2) identify how and where the BLM is commonly challenged on its use of science, and (3) use the challenges and associated information from case documents to identify priority science needs. To our knowledge, this study is the first to use publicly available litigation records to identify and prioritize science needs.
Staff from the U.S. Geological Survey (USGS) and the BLM worked closely together to develop methods and to help ensure correct understanding and interpretation of information in case documents. The BLM is a management-focused agency and the USGS is an important science provider to the BLM. This coproduction effort (Meadow et al. 2015, Beier et al. 2017) involved staff with collective expertise in federal public lands research, policy, planning, management, and litigation. All document coding was performed by USGS employees to minimize any potential bias in coding. Our focus was to develop an objective, repeatable prioritization approach, and to provide the level of detail in our findings that was needed by the BLM to take specific actions to strengthen its science foundation for decision making. A group of master’s degree program students at the University of California, Davis also helped to inform our methods development and validate the repeatability of the methods by applying them to similar case documents in California. We note that we consider all priorities identified in this study to be potential priorities; the BLM will ultimately determine which of these, if any, constitute priorities for action.
We studied litigation filed in response to BLM management decisions in states of the recently defined Upper Colorado Basin region (Executive Order 2017), that includes Wyoming, Colorado, Utah, and New Mexico (Fig. 1). A diverse suite of management actions occur across the Upper Colorado Basin, including those traditionally associated with the BLM, such as livestock grazing and oil and natural gas development, as well as actions that are becoming increasingly common, such as recreation (Streater 2021). The region is also home to diverse ecosystems, species, and resources (e.g., Pinyon-juniper woodlands, archaeological resources, and threatened, endangered, and sensitive species such as Sage-Grouse [Centrocercus urophasianus and Centrocercus minimus]), and are representative of the types of actions and resources that the BLM commonly considers in its planning and management decisions.
Selecting relevant case documents
We searched publicly available case documents challenging BLM decisions finalized by the Department of the Interior (DOI) Office of Hearings and Appeals and federal courts (the two major venues where BLM decisions are challenged) over a five-year period from 1 January 2015 to 31 December 2019. Our sample spanned multiple presidential administrations and thus differing policy initiatives. To obtain case documents with challenges related to our objectives, we used the search terms “Bureau of Land Management” and either “data” or “scien*,” where the asterisk allows searching for words with any subsequent letters. DOI Office of Hearings and Appeals case documents were searched using the office’s web-based search function (U.S. Department of the Interior, Office of Hearings and Appeals https://www.doi.gov/oha). Within the DOI Office of Hearings and Appeals, our search returned challenges before two of the three primary administrative review bodies: the Interior Board of Land Appeals and the Departmental Cases Hearings Division. BLM cases before the latter primarily involved livestock grazing or certain mining decisions. U.S. federal court documents (including U.S. District Court and the U.S. Circuit Courts of Appeals) were searched using Westlaw, an online legal research database, via the DOI law library. Administrative appeals made through the DOI Office of Hearings and Appeals and litigation in federal courts are the primary avenues for challenging a BLM decision (Fig. A1.1). Select decisions may be challenged through additional means (e.g., protests, State Director review), but documents from these avenues are not publicly available and may only pertain to certain actions.
An individual case (defined here as a challenge to a federal public land management decision or action) often spans several years and typically has multiple associated case documents, each of which makes one or more decisions or rulings about aspects of the case. The lifespan of a case may not, and in our sample, often did not, fit neatly into our five-year sample period. Thus, we considered an individual published case document to be our sampling unit, rather than treating an individual case as our sampling unit. In addition, not all case documents may raise a science issue or be publicly available. It was important to us that all documents were publicly available, as we did not want to inadvertently release information, by publishing this study, about challenges that were not yet resolved or were not public. We also wanted to ensure this study was replicable.
From our initial case document search, we retained only those documents that included at least one challenge that (1) involved the BLM, (2) identified a specific, potentially affected resource, and (3) alleged an issue related to the BLM’s use of science or data. Our initial search returned 108 case documents; 48 (mean page length 18 pages, range 3–135 pages) met our inclusion criteria (Table A1.1). All results are based on this sample of 48 case documents. We categorized types of science using categories that are directly related to the steps of the NEPA process. These categories were: absence of consideration of a resource; resource data; science relevant to potential impacts; methods for analyzing potential impacts (including direct, indirect, and cumulative impacts); and mitigation actions (Table 1).
Identifying characteristics of case documents challenging the BLM’s use of science
We first recorded basic information from each case document including: the state where the challenged action occurred; the venue where the case document was reviewed; the type of BLM NEPA or planning document(s) that were challenged (Determination of NEPA Adequacy, Categorical Exclusion, Environmental Assessment, Environmental Impact Statement, or Resource Management Plan); the year the case document was finalized; the proposed action that was challenged; whether or not the BLM decision was remanded; and the statute(s) that were alleged to have been violated (Table 2).
Identifying common challenges to the BLM’s use of science
We then coded each individual challenge within a case document to identify potential science needs based on the number of case documents that included a challenge to a particular subject. We define a single challenge for the purposes of this study as the combination of a single: (1) affected resource, (2) science category (absence of consideration of a resource, resource data, science relevant to potential impacts, methods for analyzing potential impacts, or mitigation actions; Table 1), and (3) subject. Note that subjects ultimately became 12 challenge categories after three rounds of qualitative coding (Table A1.2). Specifically, we used a descriptive coding method, which is also known as “topic coding,” where we copied the text of each individual challenge, summarized the challenge into a short phrase, and then performed three iterations of inductive reasoning to create 12 focused categories of challenges (Saldaña 2009). Affected resources were selected from a comprehensive list of resources that the BLM considers in its NEPA analyses. Challenges that involved multiple affected resources, science categories, or subjects were divided and coded accordingly such that each recorded challenge disputed a single affected resource, science category, and subject.
Prioritizing science needs
Potential science needs were identified at the level of individual “topics.” We defined topics as a combination of a specific type of proposed action, affected resource, and science category. A topic was the addition of a proposed action to a challenge. Note that our primary analysis of potential science needs was done at the level of individual topics, but we also provided some analyses that were at the more detailed level of challenge categories that were nested within science categories (Figs. A1.3–A1.5).
We identified potential science needs using a two-step process. First, we searched for individual topics that were challenged in three or more case documents. Second, we identified the subset of topics identified in the first step that additionally met two or more of the following three criteria: the topic was in a BLM decision that was remanded, the challenge to the topic was lost by the BLM in at least one case document, or the topic was challenged in the majority of states in the region (three or more states). Topics that met criteria in both steps were identified as priority needs.
Characteristics of case documents challenging the BLM’s use of science
We identified 394 individual challenges within the 48 case documents that met our inclusion criteria. Within our sample, four cases had more than a single case document (one case had three individual documents and three cases had two documents). Each of these case documents was analyzed individually.
The greatest number of challenges occurred in Utah (35% of case documents), followed by New Mexico, Colorado, and Wyoming (Fig. 2). Challenges were made most frequently to the Interior Board of Land Appeals (40% of all case documents) and in U.S. District Court (38% of all case documents). Just over two-thirds (69%) of case documents challenged Environmental Assessments, and 57% challenged Environmental Impact Statements (Fig. 2). NEPA was most often used as the basis for bringing the challenge (73% of case documents), followed by the Federal Land Policy and Management Act (48%), the Administrative Procedure Act (40%), and laws related to specific actions or resources (Mineral Leasing Act, 23%; National Historic Preservation Act, 12%; Taylor Grazing Act, 10%; and Wild and Free-Roaming Horses and Burros Act, 10%; Figure A1.2).
Common challenges to the BLM’s use of science
Oil and gas development was the most frequently challenged proposed action (35% of case documents), followed by livestock grazing and range management (19%), and mining (19%; Fig. 3). Mining includes leasable mining, locatable mining, and saleable mining, that respectively refer to organic minerals such as coal that are subject to the Mineral Leasing Act of 1920, hard rock minerals that are located via a lode or placer claim and are subject to the General Mining Act of 1872, and low-value resources such as sand and gravel that are subject to the Materials Act of 1947. Challenges to management of wild horses and burros occurred in 10% (five) of the 48 case documents.
Thirty-two of the 47 resources that BLM commonly considers in its decision analyses were challenged in one or more of our case documents (Fig. 4). Challenges related to air quality and climate (considered collectively as a resource by the BLM in its analyses) were the most frequent (occurring in 40% of case documents), followed by challenges related to grazing and range (occurring in 25% of case documents), water (19% of case documents), minerals (17% of case documents), and soils (17% of case documents).
Across the different science categories (Table 1), challenges to the resource data used in BLM decisions were most common (occurring in 63% of case documents). The specific categories of challenges, or challenge categories, that we coded associated with data were an alleged issue with the BLM’s resource data (54% of case documents), or an alleged issue with the BLM’s methods for collecting resource data (23% of case documents; Fig. 5). Of our science categories, the category for science relevant to potential impacts was the second most frequently challenged (occurring in 52% of case documents). Challenges to science relevant to potential impacts included the challenge categories of an alleged failure by the BLM to properly assess a potential impact (52% of case documents), and an alleged issue with BLM’s use of science (21% of case documents). The BLM’s methods for quantifying or qualitatively analyzing potential direct, indirect, cumulative, or unspecified impacts were challenged in 50% of the 48 case documents, with analyses of cumulative effects challenged most frequently (35% of case documents). Mitigation actions were also frequently challenged (31% of case documents) and encompassed the challenge categories of alleged failure by the BLM to adequately mitigate impacts (19% of case documents), an alleged issue with the BLM’s process of determining mitigation measures (13% of case documents), and an alleged issue with the BLM’s monitoring or implementation of mitigation measures (6% of case documents). The science category for absence, or alleged failure to consider a potential effect of the proposed action to a resource, was challenged in 17% of case documents.
Prioritizing science needs
We identified priorities across all five of our science categories and across multiple resources (Fig. 6; Figs. A1.3–A1.5). Identified priorities occurred within three categories of proposed actions: oil and gas development, mining, and management of wild horses and burros. The greatest number of science priorities were identified for oil and gas development decisions, with three of the science categories (data, science, and analysis methods) emerging as priorities for air quality and climate as an affected resource. Other priorities related to oil and gas development actions were science about water and also specifically about water quality, methods for analyzing potential indirect impacts to cultural resources, and science about socioeconomic resources (Fig. 6; Fig. A1.3). Example challenges that contributed to these identified needs included contentions that the “BLM relied upon underestimated methane emissions data” (Wilderness Workshop v. U.S. Bureau of Land Management, 342 F. Supp. 3d 1145 [D. Colo. 2018], that was coded as data about air quality and climate) and that the “BLM improperly failed to ‘follow basic economic logic’ and account for the increased demand for oil and gas that would result from production on the leased parcels” (WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41 [D.D.C. 2019], that was coded as science about socioeconomic resources).
Data and science relevant to potential impacts to wild horses and burros in wild horse and burro decisions emerged as priorities, as did data about mineral resources in leasable mining decisions. Challenges contributing to these identified needs included contentions that the BLM “...used empirically deficient estimates to calculate the total wild horse population” (Colorado Wild Horse v. Jewell, 130 F. Supp. 3d 205 [D.D.C. 2015], that was coded as data about wild horses and burros), that NEPA documents failed to “...adequately [account] for recent scientific literature on the effects of PZP [porcine zona pellucida, a horse contraceptive] treatment on mares—particularly the impact of consecutive PZP injections” (Friends of Animals v. U.S. Bureau of Land Management, 232 F. Supp. 3d 53 [D.D.C. 2017], that was coded as science about wild horses and burros), and that the “BLM erred in concluding that mining... would be uneconomical because it relied on insufficient drillhole data obtained ‘more than 1000 feet away’” (COP Coal Development Co., 190 IBLA 199 , that was coded as data about mineral resources).
The BLM manages a large area of federal public lands in the western United States and is frequently challenged on its planning and management decisions. We studied a subset of recent challenges to those decisions that involved challenges related to the BLM’s use of data about resources, science relevant to potential impacts, methods for analyzing potential impacts, and mitigation actions. We found that the most common types of challenges were to the BLM’s resource data (challenged in 63% of case documents), and that oil and gas development projects were the type of BLM action most frequently challenged during the sample period. Using a novel prioritization method, we identified a set of 13 potential priority science needs for the BLM based on litigation records.
Characteristics of case documents challenging the BLM’s use of science
Within our case document sample, challenges occurred within most of the venues where a challenge could be brought against the BLM, except for the Interior Board of Indian Appeals and the U.S. Supreme Court. This is consistent with the fact that the U.S. Bureau of Indian Affairs is responsible for Native American concerns, the BLM is typically a secondary actor in these decisions, and that it is rare for cases to be accepted for review by the U.S. Supreme Court (Solimine and Gely 2005). Environmental Impact Statements were the second most frequently challenged type of document (Fig. 2b), similar to findings from numerous other studies of challenges to the BLM and other federal agencies (Smith 2007, Broussard and Whitaker 2009, Miner et al. 2014, Adelman and Glicksman 2018, Fleischman et al. 2020, Ruple and Race 2020). There is a common perception among resource managers that Environmental Impact Statements are more defensible than Environmental Assessments because the former typically involve greater analysis and thus are often the preferred analysis approach if there is concern of a decision going to litigation (Stern and Mortimer 2009, Mortimer et al. 2011). There were relatively few challenges to Determinations of NEPA Adequacy, which did not surprise BLM managers, because Determinations of NEPA Adequacy are always connected to another NEPA document (e.g., an Environmental Impact Statement; Bureau of Land Management 2008). The NEPA was the statute that was used most frequently to bring challenges regarding the BLM’s use of science or data, and it was also the statue most frequently referenced in other studies of legal challenges to federal land management agencies (Malmsheimer et al. 2004, Keele et al. 2006, Miner et al. 2014).
Common challenges to the BLM’s use of science
We found oil and gas development to be the most frequently challenged proposed action in case documents involving a challenge to BLM science or data, that is consistent with findings from another recent review of litigation in Wyoming, Colorado, Utah, and New Mexico (Palenik 2020). Other studies of challenges to the U.S. Forest Service, that also has a multiple-use, sustained yield mandate (Multiple-Use Sustained-Yield Act of 1960 [16 U.S. Code § 528]) have found challenges to oil and gas development, livestock grazing and range management, and mining as found here, although U.S. Forest Service challenges are dominated by challenges to logging and vegetation management (Teich et al. 2004, Keele et al. 2006, Miner et al. 2014).
Of our science categories, 50% of our sample documents challenged methods for analyzing potential direct, indirect, or cumulative impacts, with challenges specific to cumulative impacts being the most common (35% of case documents). Cumulative impacts have been studied in detail, and are widely considered to be difficult to quantify, which may explain our finding that they were frequently challenged. Others have highlighted their broad scope and that there are limited specific guidance, processes, and methods available to help managers assess cumulative impacts (Burris 1997, Hegmann and Yarranton 2011, Joseph et al. 2017). Further, others have also found cumulative impacts to be frequently challenged in litigation (Schultz 2012, Adelman and Glicksman 2018), specifically highlighting challenges where federal agencies failed to consider “adequate analysis of all past, present, and reasonably foreseeable future actions,” and the “adequacy of data or rationale used in the [cumulative impacts] analysis” (Smith 2006).
Priority science needs for the BLM
The highest priority needs that we identified were needs for data about potentially affected resources, science relevant to potential impacts, and methods for analyzing potential impacts of oil and gas development. These priority needs are topically aligned with recent articles in law reviews and journals of cases outside of our study sample (Palenik 2020, Siros et al. 2020). Indirect effects of greenhouse gas emissions and not using the social cost of carbon protocol (a process for quantifying socioeconomic impacts related to air quality and climate) to assess the effects of oil and gas development on climate were common topics in our study sample and are considered unsettled points of law (Palenik 2020, Siros et al. 2020). Science about socioeconomic impacts in oil and gas development decisions emerged as a potential priority, and a previous study surveying BLM and U.S. Forest Service managers found that integration of socioeconomics information into decision making was “especially challenging” (Koontz and Bodine 2008). Numerous BLM oil and gas leases were recently revoked by courts because of inadequate analyses of downstream greenhouse gas emissions, specifically the failure to look at combined climate impacts from multiple lease sales (Farah 2020, 2021), illustrating the potential consequences of these decisions to federal managers.
Not all topics that were commonly challenged emerged as priority needs. Notably, livestock grazing and range management actions did not emerge as a top need using our prioritization framework. Although the BLM’s use of science and data in livestock grazing and range management decisions were frequently challenged in our sample, our criteria for designating a topic as a priority were not met: no individual challenges were lost by the BLM, no BLM decisions were remanded, and none of the challenges were brought in more than one state. BLM staff were surprised that science and data related to livestock grazing and range management decisions did not emerge as priorities, because BLM livestock grazing decisions are commonly litigated. However, BLM staff generally consider the volume of litigation collectively, rather than considering only those cases that challenge the BLM’s use of science or data. Livestock grazing and range management challenges in our sample occurred in only Utah and New Mexico.
BLM initiated this project to identify potential science needs for the agency. Agency leaders with specific program knowledge and subject area expertise can now use our results to help prioritize agency science funding and efforts. However, it is also important to note that not all of the potential needs identified here are best addressed by the creation of new science. For example, some of the topics identified in this study may have emerged as priorities because of policy issues, or staffing or training limitations (Rose et al. 2020). Additionally, it is possible that science or data identified as potential needs may exist, but may not be regularly used or documented in agency decision documents, which are the basis for the challenges examined in this study. Other potential needs identified here may have been topics of high interest for specific policy initiatives during our 2015–2019 study period, but may not be top concerns for the BLM currently or in the long term. Additionally, topics that are frequently challenged but not lost by the BLM (which did not emerge as priorities using our method) may still be of interest to the agency, because they require agency resources to respond to a challenge and may be topics of heightened public concern about the BLM’s use of science. These uncertainties provide opportunity for further study, such as investigating what data and science currently exist that could be used to address potential needs, or how potential needs may correspond to administrative priorities.
Application of findings
Although there have been numerous reviews of legal challenges to federal land management agencies over the last two decades (Teich et al. 2004, Broussard and Whitaker 2009, Miner et al. 2014, Ruple and Race 2020), little exists about challenges specifically to the BLM and with this level of analysis. Detailed and actionable information about legal challenges is important to land management agencies, as legal challenges can significantly delay projects and paralyze active land management (Morgan and Baldridge 2015, Adelman and Glicksman 2018, Keele and Malmsheimer 2018). This is especially important to the BLM, which has historically had fewer staff and less funding than other federal land management agencies in the United States (U.S. Department of Agriculture 2021, U.S. Department of the Interior 2021). There is also greater need for delivering clear and actionable science on priority topics to the BLM, because it lacks the type of internal science support that is present in other similar agencies, such as the research stations within the U.S. Forest Service and the inventory and monitoring programs of the National Park Service. Additionally, access to science at relevant scales and in useable formats is a common and recognized limitation to science integration (Mills et al. 2002, Archie et al. 2014, Carter et al. 2020).
We present findings for a specific agency, the BLM. However, the method that we developed can be applied to any agency that regularly makes decisions that are challenged in court or another venue on the basis of the agency’s use of science, and for which those documents are publicly available. Given the broad applicability of NEPA to many decisions in the United States, and the presence of similar laws in other countries (e.g., Australia’s Planning, Development, and Infrastructure Act of 2016, Japan’s Environmental Impact Assessment Law, Germany’s Act on the Assessment of Environmental Impacts) that require the consideration of science in decision making, opportunities for application of this framework for prioritizing agency science needs are plentiful. Results can help agencies and organizations target efforts and funding toward improving data sets, conducting new science studies or syntheses, documenting or clarifying analysis methods, or developing or evaluating mitigation measures.
Our methodology has limitations. We only analyzed publicly available case documents to increase the transparency and repeatability of our study, but in doing so, we did not consider documents from cases that were settled or not publicly available. Such case documents may involve different types of challenges than those that are publicly accessible. We also sampled individual documents from a case rather than an entire case. This decision ensured that our sample documents involved at least one challenge that referenced a specific resource and action. By using this approach, we may have lost some of the nuance of particular challenges. This was a trade-off addressed early on, and BLM authors decided that the approach we selected would produce the most useful results for identifying potential science needs for the agency. Additionally, some BLM decisions may be challenged through other avenues. For example, certain minerals decisions may be challenged via State Director review, and Resource Management Plans have their own specific protest process. We did not include challenges made through these processes because the full case documents associated with these challenges are not readily available to the public, and because State Director review is only available for certain mining claims and oil and gas development decisions.
Use of the best available science in decisions supports defensible decision making (Mills et al. 2002) and helps to ensure that agencies comply with federal laws and directives (e.g., Bureau of Land Management 2008, Executive Memorandum 2021). Decision-making on federally managed public lands is challenging, as evidenced by the increasing number of legal challenges to BLM decisions and decades-long discussions by both practitioners and academics about defensibility in the NEPA analysis process (Laband et al. 2006, Tzoumis 2007, Ruple and Race 2020). Litigation and administrative appeals may be reshaping managers’ approaches to land-use decisions in some federal agencies, as managers are increasingly prioritizing actions that can withstand legal challenges (Mortimer and Malmsheimer 2011, Mortimer et al. 2011).
Legal challenges to federal public land management are abundant in the United States and are commonly viewed as a negative, in that they point to alleged deficiencies and errors. We argue that legal challenges can highlight clear opportunities for strengthening the scientific foundation for management decisions that are of strong interest to the public. The methodology that we developed here provides an opportunity for agencies to utilize legal challenges to help prioritize funds and staffing to strengthen the science and data foundation for their decisions. Coproduction was an essential aspect of the methodology that we developed, as it helped ensure that the ensuing findings fit within a useable framework and provided a level of detail that met the agency’s needs.
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We are grateful to Karen Prentice, Megan Gilbert, and multiple staff at the BLM Colorado State Office, including Chris Domschke, Sam Dearstyne, Amy Stillings, Kelly O’Toole, and Jennifer Whyte, for their input and assistance in developing our approach and methods for this project, and insights in interpreting results. We thank Amy Bilyeau from the DOI Library for conducting our case document search in Westlaw, and Paul Griffin, Cameron Aldridge, and Nancy Zahedi for providing helpful reviews of earlier drafts of this manuscript. We would also like to acknowledge Toni Lundeen and Aimee Oberti-Murray from the DOI Office of Hearings and Appeals, Interior Board of Land Appeals, for helping us understand the administrative review process within the Department of Interior and for their assistance in properly citing the litigation and administrative appeal documents in our study sample. Four masters’ students at the University of California Davis, Keiko Mertz, Edlyn Nuñez, Ruyu Bai, and Lisa Wu, applied these methods to case documents in California that helped to inform and validate our methods, and we greatly appreciate their work. Any use of trade, firm, or product names is for descriptive purposes only and does not imply endorsement by the U.S. Government.
The data used here were retrieved from the Department of the Interior–s Office of Hearings and Appeals online database (https://www.doi.gov/oha) and the Westlaw online legal database (https://legal.thomsonreuters.com/en/westlaw). A complete list of the documents that were analyzed is provided in Table A1.1 in the Appendix.
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Table 1. Five categories of science used by the Bureau of Land Management (BLM) in its decision making and analysis under the National Environmental Policy Act. These categories were defined through a coproduction effort between the BLM and U.S. Geological Survey. Definitions for each science category and examples of challenges in case documents that challenged the BLM’s use of science are provided in the table below. A full list of the case documents that were sampled can be found in Table A1.2. Abbreviations are as follows: Bureau of Land Management (BLM); National Environmental Policy Act (NEPA); Interior Board of Land Appeals (IBLA); District (D., as in District Court); Circuit (Cir., as in Circuit Court).
|Science category||Definition||Example challenges|
|Absence||An alleged failure to consider potential effects of the proposed action to a resource||“BLM failed to consider the impacts of granting the leases in four distinct areas of concern: (1) greenhouse gas emissions and climate change, (2) air quality, (3) water resources: including the impacts to water quantity, groundwater quality, and surface water quality” (San Juan Citizens Alliance v. U.S. Bureau of Land Management, 326 F. Supp. 3d 1227 [D.N.M. 2018]).|
|“Defendants [BLM] violated NEPA and the APA [Administrative Procedure Act] by failing to ‘consider SFC #1 [the well]–s impacts on the San Luis Valley environmental justice community’” (San Luis Ecosystem Council v. U.S. Bureau of Land Management, Civil Action No. 14-cv-00680-RM [D. Colo. Jun. 19, 2015]).|
|Data||Data about potentially affected resources of concern||“BLM failed to accurately assess the environmental baseline, especially ‘livestock-degraded ecological conditions of the lands and waters traversed by the line,’ because it failed ‘to conduct necessary on-the-ground baseline inventories over all periods of [the] year for the broad range of BLM sensitive species affected by the biological footprint of the project’” (Western Watersheds Project, 188 IBLA 277 ).|
|“BLM did not use the best available scientific information because it did not conduct a sufficiently detailed, granular analysis of soil type and use that data and Ecological Site Descriptions (ESDs) to identify expected natural vegetation. As a result, BLM incorrectly identified expected natural vegetation in the Project area as sagebrush, instead of pinyon and juniper” (Southern Utah Wilderness Alliance, IBLA 2019-0094 [Sept. 16, 2019] [Final Order setting aside BLM’s wildfire management decision]).|
|Science||Science relevant to the potential for a proposed action to affect resources of concern||“BLM failed to adequately consider the likely air quality impacts of the proposed POD [Plan of Development]... particularly the impacts associated with emissions of volatile organic compounds (VOC), nitrogen dioxide (NO2), and particulate matter less than 2.5 microns in diameter (PM2.5)” (WildEarth Guardians, 185 IBLA 193 ).|
|“Plaintiff contends that neither the DNA [Determination of NEPA Adequacy], nor any of the prior NEPA documents that it incorporates, adequately accounts for recent scientific literature on the effects of PZP [porcine zona pellucida; horse contraceptive] treatment on mares—particularly the impact of consecutive PZP injections” (Friends of Animals v. U.S. Bureau Land Management, 232 F. Supp. 3d 53 [D.D.C. 2017]).|
|“BLM based its subsidence analysis on unsupported assumptions and inapplicable studies” (COG Operating, LLC, 190 IBLA 49 ).|
|Analysis methods||Methods for quantifying or qualitatively analyzing potential impacts (specifically direct, indirect, cumulative, or other) of proposed actions on resources||Direct impacts
|“BLM failed to quantify the amount of elk habitat that would be impacted, and provided only ‘sweepingly general statements’ such as stating that impacts would be minor to moderate, depending on the amount of seasonal movement through the area” (Confederated Tribes of the Goshute Reservation, 190 IBLA 396 ).
“BLM ‘underestimated’ VOC [volatile organic compounds] emissions from oil and gas operations ‘by nearly 30-fold’” (WildEarth Guardians, 185 IBLA 193 ).
“Plaintiffs contend that GHG [greenhouse gas] emissions from ‘downstream’ use of oil and gas were an indirect effect of BLM’s leasing decisions that BLM ‘failed to even acknowledge’” (WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41 [D.D.C. 2019)].
“BLM arbitrarily defined an area of potential effects for each APD [Approval to Drill] in a way that excluded cultural sites that might be indirectly affected by Mancos Shale development” (Dine Citizens Against Ruining Our Environment v. Bernhardt, 923 F. 3d 831 [10th Cir. 2019)].
|Cumulative impacts||“BLM entirely failed to address the likely cumulative impacts...and past, present, and reasonably foreseeable future actions on air quality” (WildEarth Guardians, 185 IBLA 193 ).|
|“...after quantifying GHG emissions, BLM should have applied a tool to quantify the emissions’ cumulative impact on climate change... by not utilizing the ‘social cost of carbon’ and the ‘global carbon budget,’ BLM ‘arbitrarily dismissed the need to analyze cumulative GHG [greenhouse gas] impacts’” (WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41 [D.D.C. 2019)].|
|“BLM failed to adequately consider the cumulative impacts of the Project on migratory bird populations and habitat because it did not consider impacts from other proposed vegetation treatment projects” (Southern Utah Wilderness Alliance, IBLA 2019-0094 [Sept. 16, 2019][Final Order setting aside BLM’s wildfire management decision]).|
|Other impacts||“BLM erred in estimating applicable costs and requiring an increase of its statewide bond...[the] anticipated cost to plug and abandon this well is ‘substantially lower than estimated by the BLM’” (Mar/Reg Oil Company, 192 IBLA 1 ).|
|“Petitioner contends that BLM violated NEPA by relying on an incorrect traffic operations analysis...Petitioner contends that the traffic modeling ultimately relied on to develop the mitigation measures in the FEIS [Final Environmental Impact Statement] was flawed because the Vissim traffic modeling system did not take into account all of the factors that could potentially impact traffic flow” (Rags Over The Arkansas River, Inc., v. Bureau of Land Management, 77 F. Supp. 3d 1038 [D. Colo. 2015)].|
|Mitigation||Mitigation actions to minimize any negative effects of proposed actions on resources of concern||“BLM’s conclusion that underground potash mining would not significantly impact oil and gas operations rests entirely ‘on hypothetical mitigation measures’ that are yet to be developed, and that ‘BLM simply assumes will magically work’” (COG Operating, LLC, 190 IBLA 49 ).|
|“BLM improperly deferred consideration of mitigation until the permitting stage of development” (San Juan Citizens Alliance v. U.S. Bureau of Land Management, 326 F. Supp. 3d 1227 [D.N.M. 2018]).|
|BLM “violated the RMP [Resource Management Plan] and FLPMA [Federal Land Management Policy Act] by approving the Project without sufficient pollution mitigation measures to ensure air quality” (Southern Utah Wilderness Alliance v. U.S. Department of Interior, 250 F. Supp. 3d 1068 [D. Utah 2017]).|
Table 2. Definitions of terms used in the study. Terms may be specific to the Bureau of Land Management (BLM) and used in its analyses under the National Environmental Policy Act (NEPA), common terms used in litigation, or language that was termed as a part of this study to develop a process to identify priority science needs for the BLM.
|Case document||A single document challenging a federal public land management decision or action. Here these documents are publicly available decisions issued by the reviewing authority concerning a dispute in the overall case but are not typically the final overall decision in the case. A single case typically has multiple associated case documents, however here we considered a single case document as our sampling unit because not all case documents may have fallen within our study period (2015–2019), be publicly available, or raise a science issue.|
|Challenge||A single claim disputing an action or decision made by the BLM. Here a single challenge disputes one affected resource, science category, and a subject (which ultimately became a single challenge category after three rounds of qualitative coding; see below). If the text of a case document challenged multiple affected resources or science categories, the text was divided such that only one affected resource and science category were disputed in a single challenge.|
|Proposed action||The type of proposed project (e.g., a proposed gather and removal of wild horses, vegetation restoration project, or oil and gas lease sale).|
|Affected resource||Resources (e.g., cultural and natural) are what may be impacted by a BLM action. The resources we considered are based on a list of the resources that BLM commonly considers in its NEPA analyses.|
|Science category||One of the five categories within a framework for organizing the types of scientific information used in NEPA analyses. These categories were defined through a coproduction effort between the BLM and the U.S. Geological Survey. The science categories are absence of consideration of a resource, resource data, science relevant to potential impacts, methods for analyzing potential impacts, or mitigation actions (Table 1).|
|Challenge category||One of 12 challenge types that were commonly observed in our sample of litigation case documents. These categories were derived through qualitative coding of the subjects of each challenge to arrive at a set of more generalized challenge categories that encompassed all individual challenges in our sample (Table A1.2).|
|Topic||The combination of a single proposed action, affected resource, and a science category. Commonly challenged topics that met two or more of our three criteria became priority science needs.|
|Remand||To remand a decision means to send a decision back to the agency for further review. Impacts to a federal agency from a remand vary, but they often create more work for agency staff. A remand could mean that an entire NEPA analysis needs to be redone, or that resource managers need to revise an aspect of an analysis or decision. Remand of a decision was one of our criteria for determining a topic to be a priority science need.|
|Challenge lost||A challenge where the judge determines that the BLM lost the challenge. A topic that was lost in one or more case documents was one of our criteria for determining a topic to be a priority science need.|
|Priority science need||Topics that were challenged in three or more case documents and met two or more of our criteria (a decision that was remanded, a challenge that was lost in at least one case document, or topics that were challenged in three or more states in the region) were identified as priority science needs. All needs identified here are potential priority science needs; the BLM will ultimately determine which of these constitute priorities for action.|